An Australian retailer who Apple is threatening to sue for selling the Samsung Galaxy Tab 10.1 despite an injunction is calling Apple's bluff and says it's ready for a "cat and mouse" game.

The retailer, dMavo, is restructuring its business in the hope of blunting Apple's legal threats but a senior patent lawyer said this was a risky strategy that could backfire.

Separately, Google's patent lawyer has come out with a stinging defence of its Android partners who are being targeted with lawsuits, arguing the patent system was broken and the US patent office had granted protection to broad, vague or unoriginal ideas masquerading as inventions.

The Samsung Galaxy Tab 10.1 Photo: Supplied

Apple won a temporary injunction against Samsung last month forbidding the company from offering its tablet in Australia until a full hearing could determine whether Samsung "slavishly copied" the iPad, as Apple claims.

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Samsung's appeal against that temporary injunction will be heard by Justices Lindsay Foster, John Doswett and David Yates in the Federal Court on November 25.

But, despite the injunction, several Australian online sellers have been doing a roaring trade in the Galaxy Tab, ignoring threats of legal action by Apple. At least one, dMavo, said it had created a separate entity in Europe to place it outside the jurisdiction of Australian courts, with the tablets delivered to customers from Asia.

"We're up for it!" ... dMavo managing director Wojtek Czarnocki and his wife at their wedding.

"We have a new entity established and a separate server - just to deal with the tablet orders - that is undergoing testing as of last Saturday," dMavo managing director Wojtek Czarnocki said.

"Was Apple just bluffing or do they really want to play the cat and mouse game? We're up for it."

Mr Czarnocki said setting up a new entity cost him "next to nothing" when compared with the benefits that one could receive from the continuous sale of the tablets.

How many has he sold so far? "To be honest with you, we've stopped counting ... our servers were almost collapsing on a number of occasions."

Apple's injunction currently only applies to Samsung but, Mark Summerfield, senior associate and patent specialist at Melbourne law firm Watermark, said that, because Apple had already obtained an injunction against the Galaxy Tab, it would be relatively simple to extend the injunction to individual online sellers.

Apple could apply to the Federal Court for further injunctions even if the seller was based overseas, Mr Summerfield said.

However, it would be difficult to enforce the injunction without Apple separately asking the overseas court for such measures.

"I am curious to know whether they [dMavo] have actually obtained any advice from an experienced patent lawyer, because their strategy strikes me as risky," Mr Summerfield said.

"Moving the business unit, and the servers, offshore does not absolve them of liability for patent infringement in Australia. The acts of selling to Australian purchasers, and importing infringing products into the country, remain actionable as infringements."

Mr Summerfield said any new structure in which ownership or control of a foreign entity remained in Australia, or in which profits earned by the foreign entity ultimately benefited an Australian entity or individual, was "potentially problematic".

"In this case, the Australian connections (corporate and individual) could be held liable for infringement, costs and damages," Mr Summerfield said.

"In my view, dMavo have significantly increased their risk by the very public stand they have taken."

Mr Czarnocki said he had received legal advice and he was comfortable his local operations would not be liable for any actions undertaken by the new entity.

Mr Summerfield said Apple might now be compelled to take action to avoid appearing weak. He said Australian judges would not look kindly on dMavo's attempts to bypass the injunction and "are almost obliged to find some way to punish it to ensure that the courts retain their authority".

If Apple were to take the company to court and it did not turn up or ignored its orders, the repercussions could be severe.

Mr Summerfield said courts were able to issue injunctions and orders for costs and damages in absentia.

"In June last year three people were jailed (one of them for three years) for contempt, after ignoring Federal Court injunctions relating to copyright and trademark infringement," he said.

"Company directors are not immune from personal liability for decisions made on behalf of a company."

It is not clear to what lengths Apple will go to stop sellers such as dMavo from offering the Galaxy Tab.

Mr Czarnocki, for one, is counting on being able to sell the tablets at least until Samsung's appeal.

"Now that the appeal to the full bench is listed for November 25, Apple would have to convince the court that a hearing against us is needed before that date," he said.

"We'd be amazed, though not unprepared, should that occur."

Harvey Norman has previously complained about being prevented from selling the Galaxy Tab in Australia despite it being available to buy from online stores. Today, the retail giant told The Australianthat it was considering going offshore in order to be on a level playing field with overseas online sellers that are not required to pay GST.

Google is at the centre of the patent infringement battles as its Android software powers the Galaxy Tab and other products that are being targeted in patent infringement suits. Oracle, Apple and Microsoft are all suing either Google or its Android partners, demanding injunctions against selling devices, or licensing fees.

Technology companies across Silicon Valley are buying up large patent portfolios to use to defend themselves against patent infringement claims.

Google has previouslylashed out in a blog post, accusing competitors including Apple of attempting to stifle innovation by using "bogus patents" to target its partners.

This week, Google patent lawyer Tim Porter continued the attack in an interview with the San Francisco Chronicle. He said he was concerned that the more people get distracted with litigation, the less they will be inventing.

"You can look at the development of the software industry and see a point when [software wasn't being patented] and it was a period of intense innovation," he said.

"You didn't see Microsoft's first software patent until 1988. By that time it had come out with Word, not to mention DOS. So there's just no question you can look back and see that innovation happens without patents. It's also true that since there weren't patents, there wasn't software patent litigation."

Mr Porter said the current patent system was broken, and fuelling the litigation were a large number of software patents that "resulted from a 10- or 15-year peroid when the issuance of software patents was too lax".

Referring to Microsoft targeting Linux in the past, Mr Porter said: "When their products stop succeeding in the marketplace, when they get marginalised, as is happening now with Android, they use the large patent portfolio they've built up to get revenue from the success of other companies' products."

89 comments

Ultimately, all these legal battles ever do is make lawyers rich and the choice for consumers poorer.

Commenter

meinrosebud

Location

Rosebud

Date and time

November 08, 2011, 11:20AM

Patent infringements mean lawyers rub their trotters with glee as they dream of swimming in pools of money.

Apple et al, stop being stupid... you all claim you want to help your customers through innovations, but all we can see is you stifling innovation through greed.

Commenter

DA

Location

Australia

Date and time

November 08, 2011, 11:47AM

I look forward to hearing you have been charged with contempt. of court.

For the trolls, look up Microsoft in the 1990's, if you want to see how a truely bad company works. Only ten years of oversight made them a better company. It wouldn't have happend voluntarily.

And if Apple products are so bad, why are they so successful, and why do all companies copy them?

Commenter

ij

Date and time

November 08, 2011, 11:51AM

Thanks to Apple & the rest patents won't be worth the paper they're printed on soon.

Commenter

Kick

Location

Inthemoot

Date and time

November 08, 2011, 12:10PM

ij - Because Trolls like you who use iPhones or Apple products are often uneducated and wanna look cool or have no integrity or morals... Call us Trolls we say it back... play fair...

Commenter

James

Location

Sydney

Date and time

November 08, 2011, 12:11PM

Awesome wedding dress!

Commenter

derkman86

Location

Sydney

Date and time

November 08, 2011, 12:18PM

Compared to other countries we are such an insignificant market! Apple really are the worst company in the world!

Commenter

anonymous

Location

melb

Date and time

November 08, 2011, 12:19PM

His wife is hot

Commenter

Berlusca

Date and time

November 08, 2011, 12:19PM

And if Apple products are so bad, why are they so successful, and why do all companies copy them? Sorry, but Apple have copied others. The truth will emerge and you Fan-boys will have to get over it.

Commenter

Amazed

Location

Strathpine

Date and time

November 08, 2011, 12:21PM

Samsung please stop copying Apple's iPhone mobile phone shapes. Apple is crap anyway... I moved from Apple to Samsung because of Apples behaviour. I did not like Samsung's use-ability so I moved from Samsung to Sony Ericsson... Samsung fix your use-ability it is so weird to use your phones and not simple enough.